0120130243
03-27-2015
Complainant, v. Sally Jewell, Secretary, Department of the Interior (Bureau of Reclamation), Agency.
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.
Appeal No. 0120130243
Agency No. DOI-BOR-11-0500
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 24, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as an Information Technology Specialist at the Agency's Information Technology Services, Great Plains Regional Office in Billings, Montana.
On November 15, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior EEO activity when:
1. she received a Notice of Warning for Unacceptable Conduct dated August 11, 2011, for a workplace incident that occurred on August 3, 2011;
2. from September 2008 to August 2011, she was subjected to ongoing harassment when:
a. after her request to be moved out of the Communications Division of Information Technology (COMMS), she was given a proposed new Position Description on September 30, 2011, that would downgrade her from a GS-2210-11 to a GS-335-8;
b. on December 8, 2010, she was singled out when she received an email saying "I just wanted to make sure everyone knows that I'd like a leave slip for 1 day," and she was the only one that received the email message;
c. on December 7, 2010, she received an email from her supervisor stating that she was required to do an out-of-office email if she was gone for a day, even though it was never stated verbally or in writing;
d. in November 2011, she felt she was being badgered to schedule her use/lose annual leave;
e. in June 2011, she was questioned about her available use or lose leave;
f. in July 2011, she was removed from the Wide Area Network (WAN) Team email group;
g. in June 2008, she was harassed over how she handled hotline calls;
h. on September 24, 2007, she felt she was 'set up' when she was told by the Acting Supervisor that she would have to take backup tapes to offsite storage at the Bureau of Land Management (BLM). The person responsible for showing Complainant where to go took Complainant through a back gate loading dock that required a key card to access. Complainant was never given a keycard and the person showing her told her to use the badge that was in the bag, because the Acting Supervisor had not made any arrangements to get Complainant access;
i. on October 4, 2007, she was called into her supervisor's office and informed that BLM had reviewed the security video tapes and noticed that the key card she was using to gain access was not her keycard. Complainant felt that the Regional Information Technology Manager set her up and orchestrated this situation hoping to cause a security incident, well knowing that Complainant would have to use another employee's keycard to gain access since arrangements were not made with BLM for Complainant to have temporary access to tape storage.
After the investigation of claims, the Agency provided Complainant with a copy of the report of investigations and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on September 24, 2012, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of sex and reprisal discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. The Agency further found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Regional Information Technology Manager stated that in 2009, she became Complainant's supervisor. The supervisor stated that in regard to claim 1, she issued Complainant a Notice of Warning for Unacceptable Conduct for a workplace incident that occurred on August 3, 2011. Specifically, the supervisor stated that she issued the notice "based on [Complainant's] foul, aggressive, and abusive language towards [a named Team Leader]. Contrary to her allegations the notice was not issued based on her sex or age. I have given more severe discipline (Letter of Reprimand - which is several levels higher in severity than a Letter of Warning) to a male who, in March 2008, told participants in a meeting they could go 'fuck themselves.' The reason I gave [Complainant] the Notice was her language, name-calling, and abuse towards another employee."
The Team Leader stated that the whole incident started on August 2, 2011, when Complainant was supposed to draft an email to the Area Office Manager. The Team Leader further stated that the supervisor has a standard policy "that any emails that go out, she wants to review [them] first - this is across the board and not specific to one person...[Complainant] sent the email directly to [supervisor] and did not include me. On August 3, 2011, [supervisor] asked me if I reviewed [Complainant's] email. As a Team Leader I'm supposed to review and if necessary, make corrections first before it is forwarded to [supervisor]. I told her no I had not seen/reviewed the email. [Supervisor] stated that [Complainant] did not follow her instructions because she met with [Complainant] and her email did not state what she wanted it to say (pros and cons in the email)."
Further, the Team Leader stated that the next day, August, 3, 2011, she and the supervisor met with Complainant to discuss the changes to Complainant's email. After the supervisor shared her comments, Complainant "was getting upset at that point because we reviewed her email and had revisions. She strongly expressed her dissatisfaction with our review." The Team Leader stated the following the meeting, she and the supervisor left "but on the way to our offices, [Complainant] continued to rant about us having to review the email; she had to find another job, etcetera."
The Team Leader stated that Complainant later sent her an edited draft to review based on their earlier meeting. The Team Leader stated that she then emailed Complainant "my suggested changes. She blew up over the changes I had made and felt it would be an insult to [employee's] intelligence by listing pros and cons in the email. I told her I was just doing my job, what was expected of me as team leader. I told her [supervisor] had told us to list pros and cons, I told her I did not know if [supervisor] meant it literally or not, but [supervisor] would review and make changes. At this point, [Complainant] said I was a 'kiss ass' and a 'chicken shit'...as the tirade continued I told her we needed to go to see [supervisor], she refused...in the meantime, [Complainant] called me an 'asshole' and at that point, I decided it was best if I left before I said things I would regret. As I was leaving, [Complainant] said 'sure you call the boss to get me in trouble and then you leave.' I told her she wasn't the only one 'pissed off.' [Supervisor] was coming down the hallway and asked what was going on. I told [supervisor], [Complainant] was having a meltdown over the email and I didn't want to have deal with it."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
With regard to her reprisal claim, the instant complaint appears to be the first formal complaint of discrimination filed by Complainant.1 Complainant first sought EEO counseling on this complaint on August 12, 2011. She alleges that the events in her formal complaint that occurred after this date were retaliatory.
The Team Leader stated that in regard to claim 2.a., she does not much information about Complainant's proposed Position Description "but I had to help rewrite her position description. I reviewed it and wrote what she would be doing based on the information told to me by [Complainant's supervisor]. Before [Complainant] moved, she did a lot of networking tasks, but once she moved, it was taken away. Anything that should remain on our team like network monitoring, telephone management and troubleshooting for our Area Offices, etcetera that needed to stay within our team, I removed from the position description."
Further, the Team Leader stated that she and the supervisor met with Complainant "to determine what duties would remain and what she would be doing and we were all in agreement. I do not recall all of the duties that she kept, but I know that she was still able to keep the cell phone stuff and the Regional Office phone moves.
Regarding claim 2.b., the supervisor that she may have sent her an email but does not recall doing it. The supervisor stated, however, she requires employees to submit a leave slip "for one day especially if the employee knows ahead of time that they need the time off. I do this for scheduling purposes to make sure that there is coverage in an area and to ensure leave is on the calendar."
Regarding claim 2.c., the supervisor acknowledged sending an email to Complainant stating she was required to do an out-of-the-office email if she was going to be out of the office for the day. For instance, the supervisor stated that it is Agency policy "for everyone in this division, and it is something that the Deputy Regional Director has spoken about numerous times in managers meetings. It is a requirement from the front office that I passed down to my employees. I have sent out reminders and I have also called employees at home if they have forgotten the out-of-the-office rule or phone greeting update."
The Human Resources Specialist stated that the Deputy Regional Director "has requested that everyone put on their out of office email and voice mail - this is required in every department in the regional office and it has been the practice for as long as I have been here ..13 years and more."
Regarding claim 2.d., the supervisor denied badgering Complainant to schedule her use or lose leave. Specifically, the supervisor stated "I did not badger [Complainant], but I do remember that she was upset that I asked her to schedule her use/lose leave. There is a time period, that is directed by [our] HR staff, when employees have to schedule their use/lose leave...I encourage employees to schedule their leave throughout the year. [Complainant] was not treated any differently than any other employee in this instance and she is aware, from the all-employee HR emails, of the use/lose policy in which she needs to schedule it like every other employee."
Regarding claim 2.e., the supervisor stated "I do not recall this incident. However, [Team Leader], the Team Leader has to know that there is sufficient coverage in the area and [Team Leader] would want to know if someone had two or three weeks of use/lose leave left to coordinate and plant the schedule and coverage."
Regarding claim 2.f., the supervisor acknowledged requesting that Complainant be removed from the WAN Team email group because "it is not part of her responsibilities. [Network Manager] was moved into that group and he became the WAN Team member back-up. [Complainant] was the temporary back-up prior to [Network Manager]. I explained to her that this was not going to adversely affect her performance evaluation because it was a temporary assignment and her position description did not require her to be a WAN Team member."
Regarding claim 2.g., the supervisor stated she has no recollection of Complainant's claim that she was harassed over how she handled hotline calls. The supervisor further stated "I know that we were all talked to because sometimes we answered the hotline calls and gave the wrong information and it took the proper group a longer time to fix the problem; so now we don't answer calls that don't belong to our groups."
Regarding claims 2.h. and 2.i., the supervisor stated that she had no knowledge of any matters prior to January 2009. The Deputy Regional Director and Team Leader also stated that they were not familiar with these claims.
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of her sex and prior protected activity.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 27, 2015
__________________
Date
1 Complainant did indicate that she contacted an EEO counselor in 2006, but never filed a formal complaint because her allegations were untimely. Complainant does not allege any other type of protected EEO activity.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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